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Evidence relating to marking of document

(Querist) 10 August 2008 This query is : Resolved 
here the question involved is the admissibility of a digital photograph. whether the C.D produced along with the Photo be treated as Primary evidence? Please refer sitations (AIR,SCC)
Kiran Kumar (Expert) 10 August 2008
well to the extent i ve observed, when we exhibit photos in a case in the form of an evidence, the negatives are to be submitted alongwith.

in case of digital photo the source is memory far as cds r concerned i dont opine that they are the primary evidence, reason being contents of the cds can be tempered prior to its creation.

well i ll find some judgments for you.
praveen kumar (Expert) 10 August 2008
Dear sir,
you need not take help of citations,just go through S61 and S.62 of indian evidence act. S61 tells about the primary evidence and S62 relates to the secondary evidence "of documentary evidence",i.e.,in case a document is disputed , the document itself will be the primary evidence,but in casae covered by S.65 i.e., where the document is proved to be in the possession of the other party or is proved to be lost ,the secondary evidence is admissible.In the present case the photo along with the memory card or the CD made from the memory card can be treated as the secondary evidence of the document.
Let me make it clear once again that primary and secondary evidence under S61 and S.62 relate to the documents only ,which has been defined under S.3
K.C.Suresh (Expert) 11 August 2008
“A photograph is a photograph of something . . . . In other words, if a photograph is a photograph of a subject, it follows that the subject exists . . .”. Digital images, such as digital photographs, are pictures recorded by a digital camera. The images recorded by a digital camera are stored on a memory card. The images on this card can be loaded and stored on a computer to be printed-out for later use.
A photograph taken by a digital camera is an “original” photograph. The basic elements used by a digital camera to create a photograph are no different than a film-based camera; both use light sensitivity controlled by an aperture and shutter speed to capture the image.
The digital photograph is kept on the flash memory card on which it was recorded and the traditional photograph is kept on the negative on which it was recorded. In each case, the original imprint remains unaltered. With respect to authenticity and evidentiary value, there is no practical difference between digital and film-based photographs. The impulses stored on magnetic tape (that is, the actual digital data) were useless to a human observer until translated into a readable form, and so the best evidence rule was satisfied if the computer printouts were admitted.
Authentication of the photograph
The photograph can be authenticated when the witness (or photographer):
•Is familiar with the object or scene;
•Explains the basis for his/her familiarity with the object or scene;
•Recognizes the object or scene in the photograph as the one he/she saw; and
•Testifies that the photograph is a fair, accurate, true, or correct depiction of
the object or scene at the relevant time.
KANDE VENKATESH GUPTA (Expert) 12 August 2008
Mr.Suresh had given a very valuable guidance with regard to digital photographs or C.Ds. The only thing that requires with regard to admissibility is that the person who is producing the photograph or C.D. should establish that the original contents of the digital photograph or C.Ds are not tampered or edited by application of software programs. Once, the digital image or the C.D. is edited or tampered in any manner, the photograph and C.D. loses its evidentiary value.
Sanjeev Mohan (Querist) 13 August 2008
Thank you for all for enlightening me on the subject.

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